State v. Sargent & Co. , 45 Conn. 358 ( 1877 )

Pardee, J.

By the common law as it stood long before the coming of our ancestors to this country and the settlement of the colony of New Haven, the king, as parens patriae, held the title to the soil under the sea between high and low water max-k; he held it not for his owxx benefit but for his subjects at large, and for the subjects of all states at peace with him; he held it in trust for public uses, established by ancient custom or x’egulated by law, the most important of which are those of fishing axxd navigation. In 1662 Charles II granted all the lands of the colony by charter to the freemen incox'porated thereby. This coux’t said in Church v. Meeker, 34 Conn., 421, that there had been in this state no judicial determination of the question whether or not that charter conveyed the royal title to the shores of the sea; that the Supreme Courts of Massachusetts, New Jersey and of the United States, having each decided that similar grants did, under the head of “ royalties,” convey such title, this court would follow them and declare that the title to the “ shores of the sea” vested in the freemen of the colony before the king was excluded by the revolution and independence; and that they, through their legislature, may therefore now exercise all the powers which previous to the grant could have been exercised either by the king alone or by him in conjunction with his parliament, subject only to those restrictions which have been imposed by the constitution of this state or of the United States.

The respondents as owners of land bounded on a harbor, own only to high-water mark. It is true they have a right to construct wharves upon the soil below that line if they conform! to such regulations as the state shall see fit to impose upon them and do not obstruct the- paramount right of navigation. From their land bounding upon the shore they hold the exclusive right to embark and go upon the sea, for the reason that no other person can enter upon their land for embarkation or for any other purpose without their permission; but every person has the superior right to navigate the waters opposite thereto without obstruction from any structure erected by them.

The duty of protecting this dominant right rests upon the legislature; and they are to determine for themselves by what methods and instrumentalities they will discharge it. It is plain that they themselves cannot descend to the making of frequent examinations into the situation of each riparian proprietor upon our extended coast. There is no bar in reason, and none in the constitution, to the vesting in commissioners appointed by themselves the power to restrain such proprietors from extending structures into navigable waters; they part with no legislative power; they enact the law; the commissioners by the aid of the courts enforce it. Besides, this mode of performing the service which the legislature owes to the commerce of the world has so often received both legislative and judicial sanction in other jurisdictions that it is now quite too late to challenge it.

The enactment of the law is in no sense an exercise of the right of eminent domain; it is not that taking of private property for public use for which compensation is to be made. The public do not propose in any manner to appropriate or use any right of the respondents in the soil of the shore, but only to guard against any invasion by them of the paramount right of the public to navigate the waters over it; to enforce against them the maxim — sic utere tuo ut alienum non locdas. It is only the exercise of the police or supervisory power vested in the legislature — the power to enact such laws as they deem reasonable and necessary for the regulation of the use by riparian proprietors of their qualified right to the soil of the shore. Indeed no individual is the absolute owner of' any land in so high a sense as that he can set the legislature at defiance as to the use he may make of it; as part of the price to be paid for the privilege of living under law he subjects himself to certain restrictions for the public good; to limitation upon the profitable use of his property for the promotion of the general welfare. The prohibitions against wooden buildings, powder magazines -and slaughter-houses in cities,- are common instances of this.

The shore line is irregular-, broken by alternate indentations and projections, and the deep water channel is at every possible angle with, and at varying distances from it. The unrestrained desire of proprietors to build first and farthest leads them to invade and obstruct the channel. Hence the occasion for legislative interference for the preservation of the acknowledged right of all vessels to access to all wharves. Neither in its provisions nor in its mode of execution is the act in violation of any of the fundamental principles of the social compact; on the contrary its effect is greatly for the wealth and peace of the public. The manner of its enforcement is open and fair. The respondents first advised the commissioners specifically of their plans; this opened the door for a hearing; after hearing and consideration the latter advised them that the proposed structure would obstruct the public right of navigation. Here was a day in court; a day before a tribunal presumably impartial and specially qualified to determine the precise matter entrusted to them.

Nor does the law become partial and individual in its scope and operation for the reason that the commissioners are clothed with power to limit the extent to which any proprietor may reach out from his shore line towards or into navigable waters, and that it therefore will result that A, B and 0 will be permitted to build wharves of different lengths. The location of the land of each, the configuration of his shore line, the relative position of the channel, and the outline of the whole harbor as it bears upon his particular case, are all to be taken into consideration and weighed by the commissioners ; they are to determine the largest measure of use of his right to the shore which each can enjoy consistently with the greatest benefit to the public. And this general rule is to be applied alike to the respondents and all other owners; each is to surrender precisely what is necessary to prevent his wharf from being an obstruction. Therefore so far as the law and the reason of its being are concerned the surrender by each is precisely the same.

We are to take notice that the wharves in New Haven harbor have now become numerous and valuable; that the effort to extend them has invited public attention and legislative interference; that the act in question is an exception to the ordinary rule by which laws operate only after the adjournment of the legislature enacting them, and is made to take effect upon its passage. From these facts we are to infer that, so far forth as its protecting power is concerned, it was intended for immediate effect; and this is the interpretation to be put upon it. We regard the establishment of a harbor line as a matter quite apart from the duty of the commissioners to take the harbor at once into their keeping. The existence of such a line spanning the whole harbor is not at all necessary to the exercise of their restraining power over a structure immediately to be built. The high and low water lines, and the course of the channel being known, they have all necessary data for action in reference to each case as it arises.

But, if in tbeir opinion tbe public right of navigation could be more perfectly protected and the conflicting claims of proprietors more satisfactorily adjusted by the immediate establishment of a line for the whole harbor, in advance of any intention to build wharves, they are authorized to advise the legislature as to the course which in their judgment such a line should follow; but it is obvious that its highest usefulness could only be secured by the immediate exercise of the power to hold all proprietors in check until there is opportunity for legislative action. So far as the erection of any proposed wharf is concerned they must act at once; so far as this general line is concerned they may act at once or never.

By section 1, title 22, page 551, of the revision of 1875, it is enacted as follows: “All public laws, not contained in the foregoing titles, except acts of incorporation, confirming acts, acts which though public in form are of a private nature, and all public laws except such as by particular provision and this title are continued in force, are repealed.”

The respondents urge that the act in question is public both in form and nature and therefore is not saved by any of the foregoing exceptions.

After the close of each session of the legislature the secretary of the state has given notice to the public of the acts passed by publishing a part of them in one pamphlet as “ public acts,” and a part in another pamphlet as “ private acts and resolutions.” The act before us, passed in 1872, was published in the pamphlet of private acts and resolutions for that year. This classification, it is true, was that of the secretary and not of the legislature; but there the public found it, and overlooking the distinctions between acts public in form but of a private nature, and acts public in form but of a special nature, came to regard and speak of this as private; and presumably the legislature of 1875, the members of which were of this public, intended to include it in, and save it under the description of, “ acts which though public in form are of a private nature.” Indeed the same legislature, in section 19, page 438, of the revision of 1875, provided that “the private or special acts of this state shall be legal evidence, and the courts shall take judicial notice of them;” seeming to use the terms “private” and “special” as having the same general signification.

The legislature of 1869 had passed an act entitled “an act to prevent and remove nuisances and obstructions from the channel of Mill River.” This channel is a part of the harbor of New Haven, and the act is essentially of the same nature as the one in question; but the same secretary saw fit to publish it in the pamphlet of public acts for that year, and there the public found it, and, still disregarding distinctions, had come to regard this as a public act. But the legislature of 1875 declares that though public in form it is either local or private in its nature, and in the sixth section protects 'it by special mention from any assertion even that the general words, “ all public laws,” in the first section had repealed it. The act in question, that of 1872, never having been printed with the public acts, and always having been regarded as private in nature, stood in no need of such mention for its protection. The legislature recognizing the fact that the general understanding as to what laws are public and what are private is mainly the result of the official declarations made by the secretary from year to year, adapted certain expressions both in the first and in the sixth sections to this popular idea.

We think that the act in question has not been repealed.

We advise the Superior Court to grant the injunction.

In this opinion the other judges concurred.